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104.3 Trespass: Defenses And Defense Theories

    104.3.1 Trespass: Defense Theory Of “Public Premises”
    104.3.2 Trespass: Claim Of Right As Defense Theory
    104.3.3 Trespass: Disputed Ownership Or Authorization As Defense Theory
    104.3.4 Trespass: Lack Of Entry
    104.3.5 Trespass: Consent
    104.3.6 Trespass: Necessity Or Emergency As Defense Theory
    104.3.7 Defenses To Trespass: Abandonment, Open To Public, Reasonable Belief In Consent
    104.3.8 Trespass: Applicability Of Burglary Defenses and Defense Theories
    104.3.9 Trespass: Additional Defenses And Defense Theories

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    104.3.1    Trespass: Defense Theory Of "Public Premises"

PRACTICE NOTE: In the state of Washington a statutory defense to criminal trespass has been recognized for premises that were open to the members of the public provided the defendant complied with all lawful conditions imposed on access to or remaining in the premises. (See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 19.06 [Criminal Trespass-First Degree-Defense] (West, 2nd ed. 1994). In reality, however, this is not an affirmative defense but a negation of an element of the charge; i.e., that the defendant entered the premises of another. (See State v. R.H. (WA 1997) 939 P2d 217, 220 [public premises are not the premises of another].) Accordingly, when a criminal trespass is defined in terms of the premises of another, a defense theory instruction may be appropriate which requires the prosecution to prove beyond a reasonable doubt that the premises were not public.

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RATIONALE: There is no criminal intent if a person enters the property of another based on a good faith claim of right.

POINTS AND AUTHORITIES: "The gist of the offense of criminal trespass is a purposeful act of trespass on land not one's own." (Gornick v. State (TX 1997) 947 SW2d 678, 680.) Most statutes creating the offense do not criminalize acts that are undertaken in good faith as the proper exercise of ownership under a claimed right, for in such a case there is no criminal intent. (Ibid.; see also VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 47.100, comment [Robbery, General] (Lexis, 2000) [claim of right applies to Virginia statute which requires willful act of trespass]; 443 SE2d 189, 191; State v. Hoyt (MN 1981) 304 NW2d 884, 890-91; State v. Clyburn (NC 1958) 101 SE2d 295, 300 [intent or manner in which entry is made makes the conduct criminal, and a peaceful entry or entry under bona fide claim of right avoids criminal responsibility, even though civil liability may remain]; Jones v. Commonwealth (VA 1994) 443 SE2d 189, 191 [although criminal trespass statute does not contain express requirement of intent, statute has been construed to require proof of willful trespass; moreover, good faith claim of right to be on premises negates requisite intent to engage in criminal trespass]; MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 17.21, comment [Trespassing- Defined] (West, 4th ed. 1999) ["'Claim of right' is not defined within the trespassing instruction, but it is recommended that the trial judge do so if claim of right is in dispute"].)

    In sum, if a person is acting under a bona fide claim of right, albeit ill-founded, there should be no trespass. (See generally FORECITE National™ 252.5 [Claim Of Right].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTE: If the act is not in fact legally justified, it may constitute a trespass that can be redressed by civil remedies, but it is not a crime. (See Hann v. State (TX 1989) 771 SW2d 731; State v. Clyburn (NC 1958) 101 SE2d 295, 300.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

    The defendant's honest belief, even if mistakenly held, that [he] [she] had a right to enter the property negates the criminal intent necessary to convict [him] [her] of trespass.

    The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to enter the property will suffice so long as the claim was made in good faith.

    If the evidence raises a reasonable doubt as to whether defendant had the required criminal intent when entering the property you must find the defendant not guilty.

[Source: FORECITE National™.]

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RATIONALE: As a corollary to the claim of right defense to trespass, a defense theory should be available based on disputed ownership or authorization.

POINTS AND AUTHORITIES: A conviction for criminal trespass "cannot be upheld if ownership of the property is disputed between the complaining witness and the defendant." (75 AM. JUR. 2D Trespass § 184 (1991).) "[T]he claim need not be one of title or ownership, but it must rise to the level of authorization." (Reed v. Commonwealth (VA 1988) 366 SE2d 274, 278; see also U.S. v. Miller (10th Cir. 1981) 659 F2d 1029, 1033.) Hence, a claim of right based on either ownership or authorization to enter may be a defense to trespass. (See In the Matter of the Appeal in Maricopa County, Juvenile Action No. jv-512490 (AZ 1997) 942 P2d 477, 479.)

    See also FORECITE National™ 104.3.2 [Trespass: Claim Of Right As Defense Theory].

    The defendant's honest belief, even if unreasonably or mistakenly held, that [he] [she] [owned the property] [was authorized to enter the property] negates the felonious intent necessary to convict [him] [her] of [trespass] [burglary].

    The prosecution must prove beyond a reasonable doubt that the defendant did not enter property under an honest belief that [he] [she] [owned the property] [was authorized to enter the property].

    If you have a reasonable doubt as to whether the prosecution satisfied this burden, you must find that the defendant did not form the necessary felonious intent and return a verdict of not guilty.

[Source: FORECITE National™.]

    When someone takes property because he or she honestly believes that he or she has the right to take or use it, this is not larceny.  This is so, even if the person who took the property was mistaken.

[See generally People v. McCann (MI 1972) 201 NW2d 345, 346; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 22.3 [Honest Taking--Larceny] p. 22-7 (ICLE, 2nd ed. 2000/01).]

    Claim of right is not limited to situations in which a defendant believed [he] [she] owned the property. It also includes situations in which the defendant honestly, although not necessarily correctly, believed that [he] [she] had either the right or the authorization to take or use the property.

[See generally State v. Ippolito (NJ 1996) 671 A2d 165, 168; cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 20 [Claim of Right Defense to Theft Offenses] ¶ 3 (New Jersey ICLE 4th ed. 1997).]

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    See generally FORECITE National™ 78.3.3 [Lack Of Entry].

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    See generally FORECITE National™ 78.4 [Burglary: Consent, Claim Of Right, Etc.].

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PRACTICE NOTE: As in other contexts, necessity may be a defense to trespass. (See e.g., U.S. v. Gardner (D. Nev. 1995) 903 FSupp 1394, 1402 [necessity defense to trespass requires that four elements be satisfied: defendants were faced with choice of evils and chose lesser evil; defendants acted to prevent imminent harm; defendants reasonably anticipated direct causal relationship between their conduct and harm to be averted; and defendants had no legal alternatives to violating law]; Cerro Gordo Hotel Co. v. City of Mason City (IA 1993) 505 NW2d 509, 512 ["To justify summary destruction of a public nuisance or hazard, without affording the due process elements of prior notice and hearing, the person destroying the property must prove that the property was, in fact, a hazard to the public's safety and that destruction was necessary to eliminate the hazard"].)

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    104.3.7    Defenses To Trespass: Abandonment, Open To Public, Reasonable Belief In Consent

PRACTICE NOTE: "It is commonly a defense, in a prosecution of criminal trespass, that the building was abandoned, that the premises were open to the public, or that defendant reasonably believed that the owner would have permitted him to enter or remain on the property. It may also be a defense that defendant was attempting to serve legal process." (Wharton’s Criminal Law (West, 15th ed. 1995) § 333, pp. 304-05.)

    See also generally FORECITE National™ 78.4 [Burglary: Consent, Claim Of Right, Etc.].

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    See generally FORECITE National™ 78.5 [Burglary: Additional Defenses And Defense Theories].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)